The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5401

December 12, 1978

INCOMPATIBILITY:

State and federal positions concurrently held by the same person

TOWNSHIP CLERK:

Compatibility with service as an employee of the Soil Conservation Service of the United States Department of Agriculture

Although state law does not prohibit a person employed by the United States Soil Conservation Service from holding the office of township clerk, federal statutes and regulations prevent a federal government employee from seeking an elective partisan office.

Honorable Hal W. Ziegler

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on a matter which may be stated as follows:

Is it incompatible for a person employed by the United States Soil Conservation Service, a civil service position, to simultaneously hold a position as township clerk?

The common law doctrine of incompatibility prohibits an individual from holding two public offices concurrently when one office is subordinate to the other and subject to its supervisory power in some degree or when the functions of the two offices are inconsistent and repugnant to one another. Attorney General, ex rel Moreland v Common Council of the City of Detroit, 112 Mich 145 (1897); Weza v Auditor General, 297 Mich 686 (1941). This doctrine has been extended to public employment as well as public office. Knuckles v Board of Education of Bell County, 272 Ky 431; 114 SW2d 511 (1938).

The common law doctrine of incompatibility provides that when two offices are incompatible the acceptance of the second office ipso facto vacates the first office. Thus, if a state officeholder accepts an incompatible federal position, the state position is considered vacated. On the other hand, if a federal officeholder accepts an incompatible state position, the person may be disqualified from holding the state office. State ex rel Wimberly v Barham, 173 La 488; 137 So. 862 (1931); Foltz v Kerlin, 105 Ind 221; 4 NE 439 (1886). Dean v Paollicelli, 194 Va 219; 72 SE2d 506 (1952).

The Soil Conservation Service of the United States Department of Agriculture (SCS) was established under authority of the Soil Conservation Act of 1935. 49 Stat. 163; 16 U.S.C. 590 a-f. Employees of this service are responsible for developing and carrying out a national soil and water conservation program in cooperation with land-owners and operators and other land users and developers, with community planning agencies and resource groups, and with other agencies of government--Federal, State and local. The SCS also assists in agricultural pollution control, environmental improvement, and rural community development. The soil and water conservation program is carried on through technical help to locally organized and operated conservation districts; local sponsors of watershed protection projects and resource conservation and development projects; and consultive assistance to other individuals and groups. (U.S. Gov. Manual; Dept. of Agriculture Soil Conservation Service, p. 121.) (1)

The township clerk is a constitutional officer, 1963 Const, Art 7, Sec. 18, whose duties are prescribed by statute and include publication and distribution of state documents, 1899 PA 44, Sec. 35; MCLA 24.35; MSA 4.353, as well as other ministerial responsibilities RS 1846, Ch 16, Sec. 65 et seq; MCLA 41.65 et seq; MSA 5.57 et seq. In addition, the township clerk is a member of the township board, RS 1846, Ch 16, Sec. 70; MCLA 41.70; MSA 5.62, clerk of the township board of health RS 1846, Ch 35, Sec. 1; MCLA 35.1; MSA 14.61; and a member of the board of township election commissioners 1954 PA 116, Sec. 26; MCLA 168.26; MSA 6.1026.

Comparing the duties and responsibilities of an employee of the United States Soil Conservation Service with those of a township clerk, it is my opinion that incompatibility does not exist. It should be noted, however, that the rules of the United States Department of Agriculture may preclude the United States Soil Conservation employee from accepting outside employment.

These federal regulations permit outside employment as long as there is no interference with the federal employment. This 'interference' includes, but is not limited to: conflict of interest, impairment of the mental or physical ability to perform governmental duties; interruptions during official work hours; or other outside activities which could be associated with, or cause embarrassment to, the department. Furthermore, the regulations require prior approval of outside employment. Agriculture, 7 CFR, Subtitle A, Subpart B, Sec. 0.735-13.

In addition, the Hatch Political Activities Act of 1939, 53 Stat 1147 (1939), 5 USC Sec. 1501-1508, 7321-7327, and the United States Civil Service Commission Regulations preclude a federal employee from becoming a candidate for, or campaigning for, an elective public office in a partisan election. 5 CFR, Sec. 733.211. Since the position of township clerk is an elective office, 1954 PA 116, Sec. 341; MCLA 168.341; MSA 6.1341; and is partisan in nature 1954 PA 116, Sec. 345; MCLA 168.345; MSA 6.1345, federal regulations preclude a United States Government employee from seeking the office of township clerk.

Therefore, it is my opinion that, although state law does not prohibit a person employed by the United States Soil Conservation Service from holding the office of township clerk, a federal statute and regulations prevent a Federal Government employee from seeking an elective partisan office.

Frank J. Kelley

Attorney General

(1) I assume that the township has not entered into a contractual relationship with SCS to levy a special assessment for the purpose of maintaining a soil conservation program pursuant to 1923 PA 116; MCLA 41.411 et seq; MSA 5.2411 et seq.